McKinney Podiatric Associates, P.A., Coastal Foot & Ankle Associates, P.A., and Hina Shafqat Hassan, DPM v. Zeenethia Jackson

Affirmed and Memorandum Opinion filed January 25, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00874-CV

MCKINNEY PODIATRIC ASSOCIATES, P.A.; COASTAL FOOT &
ANKLE ASSOCIATES, P.A.; AND HINA SHAFQAT HASSAN, DPM,
Appellants
V.

ZEENETHIA JACKSON, Appellee

On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2021-27950

MEMORANDUM OPINION

This is an interlocutory appeal from the denial of a motion to dismiss in a
health care liability lawsuit based on the adequacy of the plaintiff’s expert report.
Zeenethia Jackson sued appellants McKinney Podiatric Associates, P.A.; Coastal
Foot & Ankle Associates, P.A.; and Hina Shafqat Hassan, DPM, alleging Hassan
committed medical malpractice and McKinney and Coastal were responsible
parties under the doctrine of respondeat superior. In two issues, appellants contend
the trial court erred in denying their motion to dismiss because the expert report
inadequately described the standard of care and Hassan’s alleged breach thereof as
well as the causal link between Hassan’s conduct and Jackson’s injuries. We
affirm.

Procedural History

Jackson filed suit against appellants alleging that when she went to see
Hassan, a podiatrist, for pain in Jackson’s left big toe, Hassan misdiagnosed the
cause of the pain and subsequently performed an unnecessary surgery, which
caused additional pain and the necessity of corrective surgery. As required by
Texas Civil Practice and Remedies Code section 74.351, Jackson served appellants
with an expert report by podiatrist Timothy Short. After appellants filed objections
to the adequacy of this report, the trial court found the report insufficient to meet
the requirements of section 74.351 and gave Jackson 30 days to cure the
deficiencies. Jackson then filed an amended report by Short. Appellants again
objected and filed a motion to dismiss, arguing the second report was again
deficient. Jackson responded by arguing the sufficiency of the report and also
suggesting that appellants had waived their arguments by having engaged in
discovery. The trial court denied appellants’ objections and their motion to dismiss,
stating in the order denying the motion that the amended report was sufficient for
purposes of section 74.351.

The Report

Short begins his amended report by providing his extensive qualifications,
explaining in part that he has taught “the exact technique to use in deciding when it
is appropriate to recommend and perform the exact surgical procedures at issue in
this case.” He further represented that he had “read and deciphered films and
radiographs to determine the correct bunion angle hundreds, if not thousands of
2
times” and teaches this to residents. Short then lists the various medical records he
reviewed in making his report and noted that they are the type of records medical
experts rely on in forming their opinions.

Regarding the facts of this case, Short explained that Jackson first saw
Hassan on May 6, 2019, “complaining of pain in both great toe joints.” At that
appointment, Hassan diagnosed Jackson with (1) Hallux Valgus bilateral lower
extremity, (2) Capsulitis bilateral 2nd MPJ, (3) Unstable 1st TMTJ bilateral, (4)
Metatarsus Varus bilateral, and (5) Metatarsus Primus Elevatus bilateral. Hassan
also provided Jackson with a steroid shot in her left foot at that appointment.
Jackson returned on May 20, at which time Hassan reviewed the results of the film
radiographs with Jackson and discussed possible surgical and orthotic courses of
treatment. Jackson reported that the steroid injection had provided some relief.
According to Short, Hassan recorded a bunion angle for Jackson’s left great toe of
18 degrees, but Short said that the evidence supported only a bunion angle of 5 to
10 degrees.

When Jackson returned on June 17, she signed a surgical consent and three
surgical procedures were discussed. “Despite the previous success of the steroid
injection, further injection therapy or orthotic therapy options were not discussed
or explored.” Hassan thereafter performed two surgical procedures on Jackson’s
left foot on July 15: (1) first tarsometatarsal joint arthrodesis, and (2) modified
McBride bunionectomy. Short noted that both the pre-procedure and the post-
procedure diagnoses were the same: left foot first tarsometatarsal joint instability
and hallux valgus deformity. Post-operative notes showed Jackson’s condition to
be stable on July 22 and August 5, but Short indicated that the notes appeared to
have been revised at a later time.

In October and December 2019, Jackson made several visits to another foot

3
and ankle specialist for “non-union/lack of joint fusion of the surgical site,” and
she signed a consent with this other doctor for corrective surgery. On January 16,
2020, the doctor performed a “lapiplasty and calcaneal bone graft to revise the
non-union site.” According to Short, “[t]his procedure was necessary solely
because of the negligence in recommending and performing the procedure in the
first place by Dr. Hassan.” Around three months later, Jackson was still
complaining of pain, but a CT scan showed healing at the surgical site.

Regarding the standards of care, Short opined that a reasonably prudent
podiatrist under these circumstances (1) would have accurately measured Jackson’s
bunion angle; (2) would not have performed the surgical procedures without either
one of two criteria being present: a bunion angle of 18 degrees or higher or the
patient experiencing severe arthritis; and (3) would not have performed the
procedures even if one or both of those criteria was present without first exhausting
all conservative options for treatment, such as further corticosteroid shots,
orthotics, and new shoes.

In discussing the alleged breaches of the standards of care, Short began by
asserting again that Hassan failed to accurately measure the bunion angle by
reading the X-rays to show a severe bunion deformity of 18 degrees when the
actual angle was normal, around 5 to 10 degrees. He then alleges that this
inaccurate reading of the bunion angle caused Hassan to recommend “an
unindicated and unnecessary surgery.” And, ultimately, Hassan performed an
arthrodesis—“surgical immobilization of a joint by fusion of the adjacent bones”—
that should be reserved for cases of severe bunion angles or severe arthritis, neither
of which Jackson ever experienced. Short also noted that Hassan recommended
and performed the surgical procedure without first exhausting conservative
treatment options in violation of the standards of care.

4
Short began his statement regarding causation by saying,

[w]ithin reasonable medical probability, the sole proximate cause of
the non-union and subsequent surgeries and pain and discomfort
related thereto experienced by [Jackson] is the surgical procedures
performed upon her by Dr. Hassan in July of 2019, and without the
surgical procedures ever being performed, [Jackson] would not have
experienced the nonunion/lack of joint fusion of the surgical site.
Short further explained that it was foreseeable at the time the procedure was
recommended and performed that within reasonable medical probability, the
procedure would result in the non-union/lack of joint fusion because the procedure
was “designed to alter a severe bunion angle into a normal one . . . and [Jackson’s]
bunion angle was normal to begin with.” “Performing this procedure on a patient
with a normal bunion angle will, within reasonable medical probability, result in
exactly what happened here—a non-union/lack of joint fusion of the surgical site.”

According to Short, there was “no other possible cause of this injury, other
than Dr. Hassan’s negligence,” and had Hassan followed the standards of care, she
would never have recommended or performed the procedure and, within
reasonable medical probability, Jackson “would never have . . . experienced the
non-union/lack of joint fusion of the surgical site and the subsequent surgical
procedures and severe pain and discomfort associated therewith.” Short concluded
that a podiatrist of ordinary prudence would have anticipated the danger caused by
the negligent acts and omissions and that absent those acts or omissions, the harm
would not have occurred, there being no other potential cause.

Standards of Review

For a health care liability claim, a claimant must serve an expert report on
each defendant early in the litigation or risk dismissal of the claim. See Tex. Civ.
Prac. & Rem. Code § 74.351(a)–(b); E.D. ex rel. B.O. v. Tex. Health Care,

5
P.L.L.C., 644 S.W.3d 660, 664 (Tex. 2022). The expert report must “provide a fair
summary of the expert’s opinions . . . regarding applicable standards of care, the
manner in which the care rendered by the physician or health care provider failed
to meet the standards, and the causal relationship between that failure and the
injury, harm, or damages claimed.” Tex. Civ. Prac. & Rem. Code § 74.351(r)(6).
Regarding vicarious liability claims and section 74.351 expert reports, “[w]hen a
party’s alleged health care liability is purely vicarious, a report that adequately
implicates the actions of that party’s agents or employees is sufficient.” Gardner v.
U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008); accord Obstetrical &
Gynecological Assocs. v. McCoy, 283 S.W.3d 96, 103 (Tex. App.—Houston [14th
Dist.] 2009, pet. denied) (applying Gardner to a professional association).

When defendants challenge the adequacy of a report, the trial court must
grant a motion to dismiss “if it appears to the court . . . that the report does not
represent an objective good faith effort to comply with the definition of an expert
report.” Tex. Civ. Prac. & Rem. Code § 74.351(l); Baty v. Futrell, 543 S.W.3d 689,
693 (Tex. 2018). An expert report satisfies this “good-faith effort” requirement if
the report discusses the standard of care, breach, and causation with sufficient
specificity to (1) inform the defendant of the specific conduct called into question
and (2) provide a basis for the trial court to conclude that the claims have merit.
See Baty, 543 S.W.3d at 693–94; Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex.
2010). Although a report need not marshal the plaintiff’s proof, it must provide
more than conclusory statements concerning the applicable standard of care,
breach, and causation. See Baty, 543 S.W.3d at 693; Jelinek, 328 S.W.3d at 539,
540 n.9. Regarding causation, a report must explain “how and why the breach
caused the injury based on the facts presented.” Jelinek, 328 S.W.3d at 540. The
purpose of the expert-report requirement is to deter frivolous claims, not to dispose

6
of claims regardless of their merit. Scoresby v. Santillan, 346 S.W.3d 546, 554
(Tex. 2011).

A court’s inquiry into the adequacy is confined to the four corners of the
report, taken as a whole. E.D., 644 S.W.3d at 664. The necessary information must
be found in the text of the report itself; omissions cannot be supplied by inference.
Hall v. Davies, 598 S.W.3d 803, 807 (Tex. App.—Houston [14th Dist.] 2020, no
pet.) (citing Scoresby, 346 S.W.3d at 555–56).

We review a trial court’s denial of a motion to dismiss for an abuse of
discretion. Bailey v. Amaya Clinic, Inc., 402 S.W.3d 355, 361 (Tex. App.—
Houston [14th Dist.] 2013, no pet.); see also Baty, 543 S.W.3d at 693. A trial court
abuses its discretion if it acts in an unreasonable or arbitrary manner or without
reference to any guiding rules or principles. Bailey, 402 S.W.3d at 361. Under this
standard, “close calls must go to the trial court.” E.D., 644 S.W.3d at 664
(alteration and quotation omitted).

Standards of Care and Breach

In their first issue, appellants contend that the expert report inadequately
describes the applicable standards of care and alleged breaches by Hassan.1 Several
of appellants’ arguments under this issue are premised on our consideration of both
Short’s second, amended report and his original report. Appellants urge that the

1
Jackson initially argues that appellants waived their arguments on appeal because they
failed to address one of the grounds for denying the motion to dismiss contained in Jackson’s
response to the motion, citing Miller v. Debo Homes, LLC, No. 14-15-00004-CV, 2016 WL
5399507, at *3–4 (Tex. App.—Houston [14th Dist.] Sept. 27, 2016, no pet.) (mem. op.), et. al.
Jackson argued in her response that the motion should be denied both because the expert report
was adequate and because appellants had engaged in discovery. Appellants only challenged the
former argument in their original appellate brief. In denying the motion to dismiss, however, the
trial court specifically found that the expert report was adequate. The court made no mention of
the ground premised on discovery. We will therefore consider appellants’ issues regarding the
adequacy of the report.

7
second report was actually a supplemental report rather than an amended report,
but this is not correct. Generally, an amended expert report served after the trial
court grants a thirty-day extension supersedes the initial report filed by the
claimant. Durrani v. Ayala, No. 14-19-00950-CV, 2021 WL 97813, at *5 (Tex.
App.—Houston [14th Dist.] Jan. 12, 2021, no pet.) (mem. op.); Clavijo v. Fomby,
No. 01-17-00120-CV, 2018 WL 2976116, at *7 n.9 (Tex. App.—Houston [1st
Dist.] June 14, 2018, pet. denied) (mem. op.). Courts have, however, considered
both reports when circumstances indicate that supplementation was intended and
not amendment or replacement. See, e.g., Packard v. Guerra, 252 S.W.3d 511, 517
(Tex. App.—Houston [14th Dist.] 2008, pet. denied) (considering refiled original
reports along with supplemental reports). Here, Short notes in the first sentence of
his amended report that it is indeed an amended report, and his amended report is
largely the same as his original report except for some additions and deletions. We
will therefore only consider the amended report. See E.D., 644 S.W.3d at 664
(explaining that appellate review of the adequacy of an expert report should be
limited to the four corners of that report). Accordingly, we will not further address
appellants’ arguments premised on consideration of both reports.

Appellants additionally assert generally that Short’s statements regarding
measurement of the bunion angle, the question of whether Jackson had severe
arthritis, and the need to exhaust conservative treatment options were vague and
ambiguous. Specifically, appellants argue that Short needed to describe in more
detail what Hassan did incorrectly and what she should have done differently. In
support, appellants cite the San Antonio court’s opinion in Lawton v. Joaquin, No.
04-13-00613-CV, 2014 WL 783340 (Tex. App.—San Antonio Feb. 26, 2014, pet.
denied) (mem. op.). The expert in Lawton opined that because the patient
experienced substantial blood loss from her abdominal wall during surgery and had

8
no preexisting conditions that would explain the loss, something must have gone
wrong during the surgery. Id. at *2. The expert further explained that the standard
of care required the defendant surgeon to maintain a sufficient blood supply to the
abdominal wall during surgery, but the expert was unable to say what actually
went wrong. Id. at *2–3. The court of appeals reversed the trial court’s denial of
the defendant’s motion to dismiss. Id. at 4.

Lawton, however, is distinguishable from the present case. As set out in
detail above, Short specifically explained that the standard of care required Hassan
to properly measure Jackson’s bunion angle, not perform the surgical procedures
absent a bunion angle of 18 degrees or more or the presence of severe arthritis, and
even if one of those conditions occurred, not perform the procedures without first
exhausting all conservative options for treatment. And Short further opined that
Hassan breached those standards by improperly measuring the bunion angle,
recommending and performing the unindicated and unnecessary procedures, and
failing to exhaust conservative treatment options. Short was therefore more
specific regarding the defendant doctor’s conduct than was the expert in Lawton
and did not simply aver that something must have gone wrong.

Regarding the measuring of the bunion angle, appellants further insist that
Short needed to say more than merely stating that she misread or miscalculated the
angle. We do not agree that more was required from Short at this stage of the
proceedings. As discussed above, the expert report needed to provide a “fair
summary” of the expert’s opinions and demonstrate a “good-faith effort” including
enough specificity to inform the defendant of the specific conduct called into
question and provide a basis for the trial court to conclude that the claims have
merit. See Tex. Civ. Prac. & Rem. Code § 74.351(r)(6); Baty, 543 S.W.3d at 693–
94; see also Kelly v. Rendon, 255 S.W.3d 665, 679 (Tex. App.—Houston [14th

9
Dist.] 2008, no pet.) (“[E]xpert reports . . . are simply a preliminary method to
show a plaintiff has a viable cause of action that is not frivolous or without expert
support.”). Short asserted in his report that the standard of care required Hassan to
accurately measure Jackson’s bunion angle and that Hassan breached this standard
by recording a severe bunion angle of 18 degrees when the X-rays revealed only a
normal angle of 5 to 10 degrees. This was sufficient to inform Hassan of the
conduct being called into question and provide the trial court with a basis to
conclude that the claims have merit. See Tex. Civ. Prac. & Rem. Code §
74.351(r)(6); Baty, 543 S.W.3d at 693–94. Short was not required to provide
explicit instructions at this stage regarding how to properly calculate a bunion
angle from an X-ray. See, e.g., Anderson v. Gonzalez, 315 S.W.3d 582, 586–87
(Tex. App.—Eastland 2010, no pet.) (deeming report adequate where it asserted
defendant doctor failed to recognize improper placement of catheter line on chest
X-ray).

Appellants also suggest that Short needed to say more regarding the absence
of severe arthritis in this case, but Hassan did not diagnose Jackson with severe
arthritis, and after reviewing her medical records, Short concurred in this
assessment. Short did not need to say more about Jackson not having severe
arthritis because there is no disagreement regarding that issue in this case.

Appellants lastly fault Short for not providing more information regarding
what conservative treatment options should have been attempted and for how long.
Short did list conservative treatment options that should have been considered, and
he noted that these options should have been exhausted before resorting to surgery.
However, because we conclude that Short’s opinions regarding Hassan’s failure to
correctly measure the bunion angle and recommendation and performance of
unindicated and unnecessary surgical procedures were adequate, we need not

10
address the sufficiency of his opinions regarding this alternative, “even if” scenario
that Short mentioned. See Miller v. JSC Lake Highlands Operations, LP, 536
S.W.3d 510, 516 n.7 (Tex. 2017) (explaining that when one set of opinions was
deemed sufficient, appellate court did not need to address sufficiency of additional
opinions in expert report); Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex.
2013) (“[A]n expert report that adequately addresses at least one pleaded liability
theory satisfies the statutory requirements, and the trial court must not dismiss in
such a case.”).2 Because the trial court did not abuse its discretion in concluding
that Short’s report adequately described the applicable standard of care and breach
thereof, we overrule appellants’ first issue.

Causation

In their second issue, appellants assert that Short’s report inadequately links
Hassan’s alleged breaches of the standards of care to Jackson’s injuries. Appellants
call the causation section of Short’s report over-general and vague, and assert he
makes no effort to explain how or why the surgical procedures caused the alleged
non-union/lack of joint fusion Jackson suffered, especially since there was no
allegation the surgery itself was improperly performed. Appellants also again
assert that Short acknowledged that surgery could have been recommended if
conservative treatment options had been exhausted. But this argument
misunderstands Short’s opinions regarding the standards of care, breach, and
causation.

As discussed above, Short did not state that the surgical procedures would
2
In their reply brief, appellants suggest that the failure to exhaust conservative treatment
options comprised the crux of Short’s allegations against Hassan. But it is clear from the report
itself that Short viewed exhausting conservative options as necessary before employing the
surgical procedures Hassan used only if Jackson was experiencing a bunion angle of 18 degrees
or more or severe arthritis. Short averred that these surgical procedures were unindicated and
unnecessary in this case regardless of the exhaustion of conservative treatment options.

11
have been indicated in the event conservative treatment options had been
exhausted; he opined that had Jackson been experiencing a severe bunion angle or
severe arthritis, the procedures could have been indicated but only after exhausting
conservative options. But he also clearly asserted that Jackson did not have severe
arthritis or a severe bunion angle, thus the surgical procedures were unindicated
and unnecessary regardless of whether conservative treatments options were
exhausted. Specifically, regarding causation, Short averred that the procedures
Hassan performed would naturally result in the non-union/lack of joint fusion
because the procedure was

designed to alter a severe bunion angle into a normal one . . . and
[Jackson’s] bunion angle was normal to begin with. Performing this
procedure on a patient with a normal bunion angle will, within
reasonable medical probability, result in exactly what happened
here—a non-union/lack of joint fusion of the surgical site.

According to Short, there was “no other possible cause of this injury, other
than Dr. Hassan’s negligence,” and had Hassan followed the standards of care, she
would never have recommended or performed the procedure and Jackson “would
never have . . . experienced the non-union/lack of joint fusion of the surgical site
and the subsequent surgical procedures and severe pain and discomfort associated
therewith.” As appellants acknowledge, Short does not assert that the surgical
procedures themselves were performed improperly; he is saying that performing
the procedures on a patient with a normal bunion angle will result in just what
happened here. He says that very clearly.

Nevertheless, appellants suggest that Short needed to go further and explain
exactly how the allegedly unnecessary surgery caused the non-union/lack of joint
fusion. In support, they cite Horndeski v. Price, No. 01-21-00577-CV, 2022 WL
3363951 (Tex. App.—Houston [1st Dist.] Aug. 16, 2022, no pet.) (mem. op.). The

12
plaintiff in Horndeski allegedly developed complications after breast
reconstruction surgery performed by the defendant doctor. In the markedly short
expert reports, plaintiff’s experts opined simply that she was a high-risk candidate
for surgery, the surgical procedure performed was not the standard of care for
plaintiff’s condition, and had the defendant refrained from performing the
procedure, the plaintiff would not have suffered injury. Id. at *2. The experts did
not, however, offer an explanation as to how or why the plaintiff’s injuries, which
included blisters, pustules, and infections on her skin, were caused by the
defendant’s conduct, and accordingly, the court of appeals reversed the trial court’s
order denying the defendant’s motion to dismiss. Id. at *7–8.

Here, Short offered significantly more information in his report regarding
causation than did the experts in Horndeski. Instead of simply stating that had the
defendant not performed the procedure, the plaintiff likely would not have been
injured—as did the Horndeski experts—Short explained that unnecessarily
performing the surgical procedure Hassan utilized on a patient with a normal
bunion angle will and, within reasonable medical probability, did cause a non-
union/lack of joint fusion at the surgical site. Although Short could certainly have
provided more details, the trial court acted within its discretion in concluding that
the report provided a “fair summary” of Short’s opinions and demonstrated a
“good-faith effort” to inform the defendant of the specific conduct called into
question and provide a basis for the trial court to conclude that the claims have
merit. See Tex. Civ. Prac. & Rem. Code § 74.351(r)(6); Baty, 543 S.W.3d at 693–
94; Kelly, 255 S.W.3d at 679; see also Abshire v. Christus Health Se. Tex., 563
S.W.3d 219, 224 (Tex. 2018) (“[T]he expert need not prove the entire case or
account for every known fact; the report is sufficient if it makes ‘a good-faith
effort to explain, factually, how proximate cause is going to be proven.’”) (quoting

13
Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex.
2017)). Accordingly, we overrule appellants’ second issue.

We affirm the trial court’s order.

/s/ Frances Bourliot
Justice

Panel consists of Justices Wise, Bourliot, and Spain.

14